Super Ute Pty Ltd & Burger v Minister for Immigration and Citizenship [2025] FedCFamC2G 1763

1. On 17 January 2021, Super Ute lodged an application with the Tribunal seeking merits review of the delegate's decision to refuse its employer sponsorship nomination.
2. On 20 February 2021, Mr Burger and his daughter lodged an application with the Tribunal seeking merits review of the delegate's decision dated 3 February 2021.
3. On 15 January 2023, Super Ute was deregistered[3].
4. On 7 August 2023, Mr Burger was invited by the Tribunal to comment on the validity of the review application which he made on behalf of Super Ute, as information before the Tribunal showed that Super Ute had been deregistered[4].
5. On 15 August 2023, Mr Burger responded to the invitation to comment, enclosing three pages of submissions which confirmed that Super Ute had been that deregistered in January 2023, along with numerous supporting documents. Mr Burger also provided additional supporting documents via emails sent to the Tribunal on 22 August 2023 and 12 September 2023.
6. The information sent to the Tribunal included evidence that the business name "Super Ute" had been registered on 22 August 2023 by Mates 4x4 Holdings Pty Ltd, a company incorporated in 2020. In a submission to the Tribunal[5], Mr Burger explained that the ultimate South African parent company, Matlotlo Trading 9 (Pty) Ltd, had decided to deregister Super Ute and to incorporate its business into Mates 4x4 Holding Pty Ltd.
7. On 18 September 2023, the Tribunal determined that it had no jurisdiction to hear the Super Ute application for review because Super Ute was deregistered at that time[6].
8. Notwithstanding the Tribunal's dismissal of Super Ute's application, Mr Burger's application for review of the visa refusal decision remained on foot.
9. On 13 February 2024, Mr Burger and his daughter were invited to attend a hearing before the Tribunal with respect to the personal Tribunal application, which was to take place on 26 March 2024[7].
10. On 21 February 2024, Mr Burger and his daughter were invited to comment or respond to the following information by 6 March 2024:
    • On 4 January 2021, Super Ute Pty Ltd ("the nominator") applied to the Department of Home Affairs ("the Department") to nominate [Mr Burger] for the position of 'Chief Executive or Managing Director' (ANZSCO [111111]).
    • On 5 January 2021, the application for approval of the nominated position made by the nominator was refused by the Department. The nominator applied to the Tribunal for merits review of that decision.
    • on 18 September 2023 the Tribunal found that the Tribunal does not have jurisdiction to review the nomination refusal, because the company had been deregistered. This means that the nomination application relating to the position specified in your visa application has not been approved.
11. On the same day, Mr Burger responded to the invitation providing the same three page submissions as provided in the Super Ute review application, along with numerous supporting documents. On 6 March 2024, Mr Burger provided additional submissions by way of letter dated 3 March 2024.
12. On 26 March 2024, Mr Burger attended the hearing before the Tribunal, appearing on behalf of himself and his daughter.

1. As mentioned, on 18 September 2023, the Tribunal determined that it had no jurisdiction to review the sponsor nomination refusal decision on the basis that the nominator, Super Ute, had been deregistered.
2. The Tribunal at paragraph [4] of its reasons observed that the applicant, Super Ute, had been deregistered on 15 January 2023, and that at the time of its decision, Super Ute's registration had not been reinstated. Consequently, the Tribunal stated at [5] that Super Ute ceased to have standing to apply for or continue with an application for review before it[8].
3. The Tribunal at [7]-[8] noted the response from Mr Burger confirming Super Ute's deregistration, that it had ceased trading, and that there was no indication that Super Ute would seek to become registered again.
4. The Tribunal subsequently concluded that the review application was invalid [11] and that it did not have jurisdiction [12].

1. On 26 March 2024, a differently constituted Tribunal affirmed the decision of the delegate not to grant Mr Burger and his daughter Regional Employer Nomination (Permanent) (Class RN) visas.
2. The Tribunal, at paragraphs [8]-[9] of its reasons identified that the relevant issue was whether the position to which the application relates was the subject of an approved nomination, as is required by cl 187.223 of Sch 2 to the Regulations.
3. The Tribunal, at paragraph [12] outlined the procedural history of the Super Ute Tribunal application and its outcome, concluding that the employer sponsor nomination associated with the Burgers' visa application remained refused. The Tribunal recorded at paragraphs [11] and [13]-[15] that it explained the requirement of having the approved nomination, and that Mr Burger confirmed he understood that requirement.
4. At [16] of its reason the Tribunal summarised Mr Burger's written and oral submissions as follows:

[16] The applicant told the Tribunal that he relied on the written submissions provided prior to hearing, dated 3 March 2024. The Tribunal has considered those submissions and note that they detail the applicants' visa history, correspondence with the Department and a comprehensive summary of the nominating employer's changing company structure. The applicant told the Tribunal that the nominating employer had always remained the same, and although there had been a change in structure and ABN due to the effects of the COVID pandemic lockdowns, for all intents and purposes the nominator was the same employer for the same occupation. The applicant told the Tribunal that at various other times, Departmental officers had accepted the nominator's name change and accepted that in all material ways the nominating employer remained the same.

1. The Tribunal also records at paragraph [18] that Mr Burger gave further oral submissions regarding the employer nomination refusal decision made by the Department, including that he was concerned that there had been a lack of understanding and attention to detail shown by the Department regarding the company structure.
2. In response to Mr Burger's submissions, the Tribunal at paragraph [20] acknowledged the concerns raised by Mr Burger regarding the employer nomination refusal, but noted the unfortunate circumstance that there was no evidence of an approved sponsor nomination to which this visa application related. At [21] the Tribunal found that the position to which Mr Burger's nomination relates was not the subject of an approved nomination.
3. As a result, the Tribunal concluded that Mr Burger did not meet the necessary criteria for the visa pursuant to cl 187.223, and the decision to refuse the visas was affirmed. Mr Burger's daughter, as the secondary applicant, therefore, failed to satisfy cl 187.311 for the grant of the visa.

1. On 19 April 2024, a company named 'Super Ute Pty Limited' with ACN 676 728 475 (Super Ute 475) was registered.

1. On 14 May 2024, Mr Burger, as director/general manager of the applicant Super Ute, applied for an extension of time in which to seek judicial review of the Tribunal's decision made on 18 September 2023. The application identified the applicant as the entity Super Ute with the ABN 41 616 918 220 and its trading name as Mates 4x4.
2. Super Ute's application for judicial review was made nearly seven months outside the 35 day time limit prescribed by s 476 of the Act - a delay which the Minister describes as "very considerable".
3. On 30 May 2024, Mr Burger and his dependent daughter applied for an extension of time in which to seek judicial review of the Tribunal's decision made on 26 March 2024. In that case the application was made more than a month outside the 35 day time limit.

1. On 30 May 2024, the Minister filed a Notice of Objection challenging the competency of Super Ute's judicial review application on the basis that Super Ute was deregistered when its application was made to the court.
2. In their Notice of Objection the Minister submitted that because Super Ute was deregistered on 15 January 2023 and no longer exists, it does not have the legal capacity to bring an application for judicial review of the Tribunal's decision[9]. The Minister also objected to the competency of the registered company Super Ute 475 on the basis that it was a separate legal entity, was never an applicant in the proceedings, was not the subject of the Tribunal's decision and therefore lacked standing.

1. On 16 August 2024, a callover in this matter proceeded before Judicial Registrar Cummings. At that hearing, Mr Burger informed the Court that Super Ute 220 had been reinstated. It is unclear precisely when the company was reinstated, but the Minister accepts that Super Ute 220 was reinstated after the application for judicial review was filed.
2. On 22 August 2024, after Mr Burger's revelation that the original Super Ute had been re-registered and his confirmation that it was the applicant for judicial review, the Minister filed an amended Notice of Objection to reinforce its challenge to the competency of the application. The Minister submitted that the reinstatement of Super Ute did not change the objective fact that it did not exist at the time the judicial review application was made and therefore it did not have the capacity to make an application or seek an extension of time. The Minister submitted that the statutory fiction created by s 601AH(5) of the Corporations Act 2001 (Cth) - which I discuss later in these reasons - did not affect that submission.
3. The Minister maintained and developed those objections in their written outline of submissions and their oral submissions at the extension of time hearing.

1. The applications for extension of time were listed for hearing on 24 October 2024. Earlier case management orders required the parties to file outlines of submissions and any affidavits on which they intended to rely. Only the Minister did so.
2. At the hearing, Mr Burger appeared with his adult daughter in relation to the visa refusal application. Mr Burger also appeared on behalf of Super Ute (now reinstated from deregistration) in relation to the employer nomination refusal.
3. As Mr Burger was self-represented, I took some time to explain the role of the Court, including that I was limited to considering the legal correctness of the two Tribunal decisions. I informed him that I was unable to consider the merit of the visa application or the employer nomination application.
4. I explained the procedure that would be followed in the hearing of the extension of time applications and gave guidance to Mr Burger about the considerations I would take into my account in determining the applications. I informed him that in determining whether it was in the interests of the administration of justice to extend time, the applicable principles required me to take into account (1) the length of and reasons for delay; (2) whether any prejudice to the respondent would result from the grant of an extension; and (3) the merit of the substantive application for judicial review. I invited Mr Burger to address those matters in his oral submissions as well as anything else he wished to raise in support of his application for an extension of time.

Is the Super Ute application for judicial review competent?

1. I turn first to the question of whether the Super Ute application for judicial review is competent.
2. This issue is inextricably linked with the question of whether the Tribunal had jurisdiction to entertain its application for review of the delegate's decision. Both questions invite consideration of whether a deregistered company has standing or capacity to invoke jurisdiction and commence proceedings under the Migration Act.
3. The following sequence of events is not contested:

Super Ute made its application for nomination as an employer sponsor.

Super Ute's application is refused by the delegate.

Super Ute applied to the Tribunal for merits review of the delegate's decision.

Super Ute's application for merits review dismissed by the Tribunal for want of jurisdiction.

Application made by Super Ute for extension of time to seek judicial review of the Tribunal's decision.

Court is informed and Minister accepts that Super Ute has been reinstated.

1. The core legal principles regarding the standing of a company to make or press applications or participate in legal proceedings, including the effect of registration and deregistration on standing, are relatively well-settled. These principles have been distilled in the Minister's written submissions by reference to established authority.
2. In RFZD v Commissioner of Taxation [2023] FCA 324 at [9], Feutrill J stated:

A company duly incorporated and registered under the Corporations Act is a separate legal personality and is able to sue and be sued in its own name: s 124 of the Corporations Act. A company comes into existence as a body corporate at the beginning of the day on which it is registered: s 119 of the Corporations Act. The corollary is that a company ceases to exist upon deregistration. It is no longer a legal person. It can no longer sue or be sued in its own name. A proceeding (including an appeal) cannot be commenced by or against a non-existent legal person: Deveigne v Askar [2007] NSWCA 45; (2007) 69 NSWLR 327 at [12], [104] - [126], [172] (and the authorities therein referred to). There is ample authority for the proposition that proceedings commenced by a company that has been deregistered (or in respect of other equivalent concepts such as dissolution under earlier or equivalent legislative schemes for corporate regulation) cannot be maintained: United Service Insurance Co Ltd (In Liq) v Lang [1935] NSWStRp 51; (1935) 35 SR (NSW) 487 at 495 - 497; CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534 at 535; Sweeney & Vandeleur Pty Ltd v BNY Australia Ltd (1993) 11 ACSR 356 at 359 - 361; International Bulk Shipping and Services Ltd v Minerals and Metals Trading Corporation of India [1996] 2 Lloyd's Rep 474 at 478; Morton v Mitchell Products Pty Ltd [1996] FCA 828; (1996) 21 ACSR 497 at 514 - 515; Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742 at 745 - 746; National Mutual Life Association of Australasia Ltd v Reynolds [2000] FCA 267 at [20] - [26]; Stergiou v Citibank Savings Ltd [2005] ACTCA 19 at [1]; Kingston Futures Pty Ltd v Waterhouse [2012] QSC 212; [2013] 1 Qd R 507 at [17]- [18].

1. The effect of deregistration of a company is set out in s 601AD of the Corporations Act 2001 (Cth). Section 601AD(1) states unambiguously that "A company ceases to exist on deregistration". The following paragraphs of s 601AD provide generally that on deregistration all the company's property vests in ASIC and ASIC has all the powers of an owner of the property vested in it.
2. Applying established principle (and ignoring the reinstatement) would necessarily lead to the following findings. First, Super Ute had ceased to exist prior to the Tribunal considering its application for merits review of the delegate's decision. The Tribunal's finding to that effect is unimpeachable. Secondly, Super Ute did not exist as a legal person when Mr Burger purported to make an application on its behalf for judicial review of the Tribunal's decision. The Minister's submission that the application was incompetent, at the time it was made, is also unimpeachable.
3. The complication in this proceeding arises from the reinstatement of the company in or around August 2024 and the legal consequences of that step. There is no evidence before the court as to how Super Ute came to be reinstated, but the Minister has accepted Mr Burger's representation that it has been, albeit after the judicial review application was made.
4. The legal consequence of reinstatement of a corporation is set out in s 601AH(5) as follows:

(5) If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in the Commonwealth or ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim.

1. The question which then falls for determination is whether s 601AH(5) operates to retrospectively validate applications which were made or were in the course of being pursued when Super Ute was not in existence (i.e. during the period of January 2023 to August 2024). As mentioned, it was in that period that Super Ute's application for review of the delegate's decision was dismissed by the Tribunal for lack of jurisdiction and Super Ute applied for judicial review of the Tribunal's decision.
2. In Allianz Australia Insurance Ltd v Viksne [2021] NSWCA 268; (2021) 106 NSWLR 306 the NSW Court of Appeal described s 601AH(5), which retrospectively deems the reinstated company never to have lost its legal personality, as creating "a statutory fiction which countermands the otherwise unqualified application of s 601AD(1)"[10].
3. This "statutory fiction" has been the subject of considerable but sometimes inconsistent authority. According to the Minister, there is no authority within the migration jurisdiction which provides guidance as to whether acts taken by a deregistered company can be retrospectively validated by operation of s 601AH(5). However, the Minister does rely on authority which suggests that reinstatement of a company only gives rise to "limited retrospectivity" and that one has to look to the particular actions of the deregistered company to determine whether they are capable of validation.
4. Relevant authority does favour the Minister's submission that reinstatement does not operate to automatically validate every act or step taken by a company during its period of deregistration. That construction of s 601AH(5) is supported by s 601AH(3) which provides that "the Court" may make an order validating anything done in the period during which a reinstated company was deregistered. If s 601AH(5) was to operate in absolute terms, s 601AH(3) would have no work to do.
5. The operation of s 601AH(5) was considered in White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441; (2006) 200 FLR 125 where at 152, [115] Campbell J opined:

[T]he effect of s 601AH(5) is that, now, the statute requires everyone to treat [the reinstated company] as though it had never been deregistered. However, that does not mean that anything which purported to be done on behalf of [the company] during the period of its deregistration is thereby regarded as valid. If a director had purported to act on behalf of a deregistered company during the period of deregistration, mere reinstatement would not validate his action, because s 601AH(5) provides only a limited measure of retrospectivity, so that the director regains his office only from the time of reinstatement...

1. The limited form of retrospectivity was also recognised in CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd [2006] NSWSC 690; (2006) 201 FLR 296 at 300, [17] where Barrett J said:

Section 601AH(5) creates only a limited form of retrospectivity. It recognises expressly that the persons who were directors at the time of deregistration are not to be regarded as having continued as directors throughout the period of the company's non-existence ... Section 601AH(5) cannot, in a retrospective way, give efficacy to active steps taken in relation to a company which, because of the company's existence, were, when taken, simply devoid of legal effect. (Emphasis added)

1. More recently, in Clancy v Australian Securities and Investments Commission [2025] FCA 220, Derrington J, cited Campbell J in White v Baycorp Advantage Business Information Services Ltd, and continued at [55]:

So construed, the "limited measure of retrospectivity" afforded by s 601AH(5) will not validate acts purported to be done on behalf of a deregistered company, or active steps taken in relation to it, automatically on reinstatement. The mere retrospective effect of a reinstatement, without more, does not supply the additional facts necessary to make for a positive answer as to whether particular acts are to be attributed to the deregistered company as at a time during the period of deregistration: Re Austral Bronze Pty Ltd (No 2) [2020] NSWSC 1633; (2020) 149 ACSR 221, 239 - 241 [63] - [68] (Austral Bronze); Foxman, 401 - 402 [42] - [44]; see also Ford, Austin & Ramsay's Principles of Corporations Law (at July 2024, LexisNexis Butterworths), [27.770.3].

1. The Minister conceded that there are cases in which it has been held that proceedings commenced by a deregistered company will be rendered competent by reason of that company's subsequent reinstatement[11]. For example, in Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742 the court held, by operation of s 601AH(5), that a claimant/plaintiff was deemed never to have lost its legal personality. Because its legal personality had been restored, the company was entitled to pursue proceedings in court.

1. The jurisdiction of the Tribunal to hear and determine an application for review of a delegate's decision and the standing of a company to commence judicial review proceedings are each conditioned by the requirement that the initiating party has legal existence at the relevant time.
2. In a case of a Tribunal review, it is well-established that the Tribunal is required to stand in the shoes of the original decision-maker, but having regard to the state of affairs as they exist at the time of the Tribunal's decision[12]. Whether a party does or does not have legal personality is a point-in-time jurisdictional fact to be determined by reference to that state of affairs.
3. Accordingly, an application for review cannot proceed to determination where a party has died (in the case of a natural person) or ceased to exist (in the case of a company). That is a perfectly logical consequence because the task of review and determination is rendered inutile. There is nothing that the Tribunal can do to give positive relief to a non-entity.
4. Similarly, an application for judicial review under s 477 of the Act, including for an extension of time under s 477(2), can only be made by the applicant in the Tribunal review or a person who is the subject of the decision: s 478. By reason of the time limit prescribed by s 477(1) and the requirement for leave to be granted to extend that period, one can infer that the competence of an application for judicial review also requires a point-in-time finding about the standing of the applicant at the time of application.
5. The line of authorities referred to by the Minister, and more recent decisions including Clancy v Australian Securities and Investments Commission, reinforce the proposition that s 601AH(5) affords only a "limited measure of retrospectivity". The provision does not automatically validate or make competent all actions or steps purportedly taken by a company during its period of deregistration. The statutory fiction cannot, in my opinion, alter objective facts which require point in time determination.
6. The Minister submits that although Super Ute might now be deemed, through the operation of s 601AH(5), to have existed at the time of the judicial review application, the provision does not change the fact that it had no legal capacity and no directors at the time of filing. It is submitted that the retrospective effect of s 601AH(5) does not validate the present proceedings involving Super Ute. Super Ute merely existing is not sufficient, as an additional step - that is having an authorised representative - was required.[13] It is also to be noted that the power to make an order validating anything done in the period during which a reinstated company was deregistered, as found in s 601AH(3) of the Corporations Act 2001 (Cth), does not extend to Division 2 of this Court[14].
7. Based on the analysis of the cases, and notwithstanding s 601AH(5), I find that Super Ute did not exist at the time the Tribunal determined its application for merits review of the delegate's decision. I also find that Super Ute did not exist and did not have the legal capacity to make an application for judicial review or an extension of time under s 477 of the Act.
8. The application by Super Ute for judicial review is incompetent and must be dismissed.
9. If I am wrong about the competence of the judicial review application, I am satisfied that the judicial review application has no prospect of success. In my view, the Tribunal was correct to find, due to the deregistration of Super Ute, that it had no jurisdiction to hear its application for review of the delegate's refusal decision.

The Burgers' application for an extension of time to seek judicial review of the Tribunal decision made on 26 March 2024

1. In its decision of 26 March 2024, the Tribunal found that the position to which Mr Burger's visa application relates was not the subject of an approved employer nomination. As a result, the Tribunal concluded that Mr Burger did not meet the necessary criteria for the visa pursuant to cl 187.223, and the decision to refuse the visas was affirmed.
2. An application for judicial review under s 476 of the Act must be made within 35 days of the date of the migration decision: s 477(1). The applicants had until 30 April 2024 to apply to the Court for judicial review. The present application was not filed until 30 May 2024, more than a month out of time.
3. The application by Mr Burger and his daughter for an extension of time to seek judicial review of the Tribunal's decision must be determined according to established principles.

Principles with respect to granting an extension of time

1. Pursuant to s 477(2) the Court may grant an extension of time if satisfied that it is necessary in the interests of the administration of justice to make the order.
2. In considering whether it is in the interests of the administration of justice to grant an extension of time, the Court will generally consider the merits of the substantive application, usually at an impressionistic level[15] by assessing whether the proposed grounds are "arguable", "reasonable arguable", "sufficiently arguable"[16] or have any reasonable prospect of success. Other relevant factors may include[17]:

(1) the length of the delay;

(2) whether the applicant has a reasonable explanation for the delay[18]; and

(3) any prejudice to the Minister or third parties.

1. In his oral submissions to the court, Mr Burger says that it is "not 100% correct" that the applications for judicial review were late. He said he made multiple earlier attempts to lodge the applications but they were unsuccessful and there was confusion in the process. Mr Burger submitted that he had tried his best to file the applications on time.
2. Mr Burger said that, he attended the court's registry on 24 April 2024 to file an application for review, but he was informed that the application was non-compliant as it needed to be signed by his daughter.
3. On 26 April, Mr Burger electronically lodged a single application for judicial review on behalf of himself, his daughter and Super Ute. On the same day, Mr Burger received an email from the court advising that his application could not be accepted as the circumstances required two separate applications to be filed - one in relation to each Tribunal decision. Mr Burger said he then made the necessary amendments, resubmitted the applications and was advised by the court via email that they had been accepted. Mr Burger made payment to the court for filing fees in relation to both applications and assumed that successful payment meant that everything was in order.
4. On 2 May 2024, Mr Burger emailed the court's registry requesting an update regarding his applications, as he had not received any response since payment to the court. On the same day, the court advised Mr Burger that his applications needed to be amended further for compliance.
5. On 8 May, Mr Burger responded to the court's email attaching a revised application for Super Ute only. He subsequently made additional attempts to lodge documents, each time receiving advice that further amendments were required.
6. Finally on 14 May 2024, Mr Burger received an email with a lodgement number for the application made in relation to Super Ute.
7. Mr Burger says he did not intend to file another judicial review application on behalf of himself and his daughter due to cost. He understood that with the Super Ute judicial review application being filed, he could apply for a bridging visa for he and his daughter. The Department however, informed him that he could not apply for a bridging visa unless he had applied to the court for review on behalf of himself and his daughter. Mr Burger confirmed that he filed his application in relation to himself and his daughter on 30 May 2024.

1. The Minister submits that both applications for an extension of time ought to be dismissed, and that Mr Burger's explanation for delay amounts to an admission of ignorance of the applicable time limits, the formal requirements for filing and Mr Burger's belief that there was no point in seeking review of the personal visa decision until the court had reviewed the Super Ute Tribunal decision. The Minister submitted that these are not adequate explanations for delay.

1. The Minister concedes that if the extension of time was granted there would be no prejudice which could not otherwise be addressed through an order for costs. However, it is well-established that the mere absence of prejudice to the Minister is insufficient to warrant the grant of extension. The Minister does have a legitimate interest in the timely disposal of these applications and there is a cost to the taxpayer and a delay in migration proceedings occasioned where application such as this are filed out of time.
2. Conversely, the court recognises that the applicants would be significantly prejudiced if the extension of time is not granted. If the applicants can demonstrate an arguable case of error, the interests of justice would normally weigh in their favour. An assessment of the merit of the substantive grounds of review will determine whether such an arguable case exists.

1. At the hearing, Mr Burger began by explaining that he made a small technical error on his application to the Department by referencing the wrong ANZSCO code in Super Ute's application and unwittingly omitted his position of General Manager. That is, Super Ute was the correct applicant but Mr Burger's position was inadvertently misdescribed. Mr Burger submitted that the delegate never afforded him an opportunity to address that error.
2. Mr Burger explained that due to a downturn in business during the early stages of the Covid-19 pandemic, he sought to rebrand Super Ute as "Mates 4x4" to better reflect the broader range of products his business offered. He explained that it was those circumstances which led him to deregister Super Ute and register a new company, Mates 4x4. Mr Burger said they were same company in substance, only the ABN had changed.
3. Mr Burger was asked whether he had any response to the Tribunal's finding that it had no jurisdiction to review the delegate's decision because the applicant, Super Ute, was not registered at the time of the review application. Mr Burger submitted that the Tribunal was wrong. Mr Burger said he honestly believed that a separate company, "Matlotlo Trading" which owned Super Ute was his employer and that this was known to the Department. Mr Burger nonetheless conceded that Super Ute was identified as the employer sponsor in his application to the Tribunal.
4. When asked what error the Tribunal made with respect to the second Tribunal decision concerning him and his daughter, Mr Burger said that the error is almost exactly the same as the first Tribunal review application. He said he tried to explain to the Tribunal his reasoning for the deregistration of Super Ute and the registration of Mates 4x4, steps which were taken for the survival of business due to Covid-19 lockdowns. He had hoped that the Tribunal would take this into consideration, as well as the fact that Super Ute business was "still trading" despite its deregistration.
5. In a reply submission, Mr Burger reiterated that he had not been afforded procedural fairness or natural justice by the Department as they refused Super Ute's nomination application on a technicality and did not give him any opportunity to explain the error made on the application. He explained that he was of the understanding that the Department was fully aware that he was a director of Super Ute, notwithstanding his application for the visa listing him as a general manager. Mr Burger said that if the Tribunal had heard the Super Ute application for review, he would have raised a claim of procedural unfairness or denial of natural justice.

1. With respect to Mr Burger's claim that he was actually employed by Super Ute's parent company Matlotlo Trading, the Minister submitted that it is well accepted that different companies are separate legal entities even though they may belong to the same separate corporate group. There are very limited circumstances in which the court would disregard that doctrine or make an exception.
2. The Minister reminded the court that Super Ute applied to the Department for employer sponsor nomination. When that nomination was refused, Super Ute applied to the Tribunal for review of the delegate's decision. The Minister concedes that at the time the Tribunal application was made, Super Ute was registered, and therefore the application was competent and the jurisdiction of the Tribunal initially engaged. The Minister also agreed that insofar as the criteria for the grant of the visa is concerned, the Tribunal was then required to decide the review application on the basis of the law as it stood at the time of the delegate's decision.
3. However, the Minister's case is that all that changed when Super Ute was deregistered before the review application was heard. The Minister submits that the Tribunal was correct to assess the application by reference to the entity which made it. The Minister submits that the Court's task is to assess facts as they stood at the time of the Tribunal's decision[19]. The Minister submits that as Super Ute had ceased to exist, it did not have capacity to continue to press the application and therefore the proceedings in the Tribunal became incompetent[20].
4. The Minister noted that on 19 April 2024, a company named 'Super Ute Pty Limited' with ACN 676 728 475 (Super Ute 475) was registered. The Minister notes that the ACN allocated to Super Ute 475 is different to that of Super Ute. The Minister says all references to the entity Super Ute 475 in the court documents can be disregarded - it is a different company and has no standing in these proceedings.
5. Turning to the decision in the related Tribunal proceeding concerning Mr Burger and his daughter, the Minister submits that the Tribunal made the only decision that was open to it. The Minister submitted that it was a mandatory criterion for the grant of a visa to Mr Burger that a relevant employer nomination had been approved. No such approval was granted and the delegate's refusal of Super Ute's application stands. The criteria for the grant of Regional Sponsored Migration Scheme (Class RN) (Subclass 187) visa was not satisfied at the time of the Tribunal's decision.
6. Further or in the alternative, the Minister submits that remittal to the Tribunal would be futile. Despite Super Ute now existing, it could not lodge a fresh nomination application[21]. Clause 187 does not contemplate allowing for employers to file repeated nomination applications.

1. The delay in bringing these applications for judicial review is not extreme. Mr Burger has given an explanation for the delay and, having viewed the court book and correspondence between he and the court registry, I accept there was a level of confusion which contributed to the delay. Mr Burger's explanation is plausible and the delay does not, of itself, weigh against the grant of an extension of time.
2. I am also of the view that an extension of time, if I were minded to grant it, would not unduly prejudice the Minister.
3. However, I accept the Minister's submission that the substantive applications for judicial review have no prospect of success. The applicants' arguments do not reach even an arguable case.
4. Super Ute's application for review of the delegate's decision did not engage the Tribunal's jurisdiction. The Tribunal was correct to dismiss the application on that basis. Super Ute's application for judicial review of the Tribunal's decision is incompetent, for the reasons I have given. If I am wrong about that, the substantive application for judicial review of the Tribunal decision has no prospect of success.
5. The Burgers' application for judicial review must fall with Super Ute's application. There has never been an approved employer sponsor nomination for the position in respect of which Mr Burger made a visa application. The criteria for the grant of a visa was not and cannot be met.

1. These dismissal of these two applications have unfortunate consequences for Mr Burger and his daughter, both of whom have resided in Australia for approximately 12 years. Mr Burger has been employed within the Super Ute/Mates 4X4 business as general manager or managing director since inception. He has successfully represented the expansion of the business into Australia.
2. However, for the reasons discussed above, I am not persuaded that there is a proper basis to grant extensions of time to seek review of the Tribunal's decisions made on 14 May 2024 and 30 May 2024. The commercial decision to deregister the applicant company had the inevitable consequence of denying Super Ute, Mr Burger and his daughter the ability to progress their review applications.
3. The Tribunal must determine its jurisdiction at the time it is ready to hear and determine an application for review. At that point in time Super Ute no longer existed, it had no legal ability to commence or progress proceedings, the Tribunal had no jurisdiction to entertain the application and the Tribunal was correct to dismiss the matter on that basis.
4. At the time of the Tribunal's review of the delegate's refusal to grant the Burgers a visa, Super Ute had not been approved as an employer sponsor for the position in respect of which Mr Burger sought the visa. Accordingly, Mr Burger could not produce evidence to the meet the mandatory criteria for the grant of the visa and the Tribunal correctly affirmed the delegate's decision.
5. The application for judicial review filed on 14 May 2024 is dismissed.
6. The application for judicial review filed on 30 May 2024 must also be dismissed.
7. I will hear the parties on costs.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

[1] Court book filed in MLG1557/2024 (Burger CB) 16-20; Court book filed in MLG1256/2024 (Super Ute CB) 47-56.

[3] Affidavit of Maximilian Plitsch of 30 May 2024 filed in MLG1256/2024, Annexure MP-02.

[8] See Corporations Act 2001 (Cth) s 601AD(1).

[9] RFZD v Commissioner of Taxation [2023] FCA 324 at [9] per Feutrill J; Corporations Act 2001 (Cth) s 601AD(1).

[10] Allianz Australia Insurance Ltd v Viksne [2021] NSWCA 268; (2021) 106 NSWLR 306 at 314 [27], 316 [34] (Meagher JA, White JA agreeing at 320 [57], Simpson AJA agreeing at 320 [61]).

[11] See Tyman's Ltd v Craven [1952] 2 QB 100; OZ-US Film Productions Pty Ltd v Heath [2001] NSWSC 298.

[12] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [7]; GWRV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 39; (2023) 296 FCR 350 at [53].

[13] White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441; (2006) 200 FLR 125 at 152 [115] per Campbell J; CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd [2006] NSWSC 690; (2006) 201 FLR 296 at 300 [17] per Barret J.

[14] Corporations Act 2001 (Cth) ss 9 (definition of 'Court'), 58AA.

[15]Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [13].

[16] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]- [63].

[17] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]- [48].

[18] MZZNU v Minister for Immigration and Border Protection [2017] FCA 496 at [3].

[19] See Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742.

[20] RFZD v Commissioner of Taxation [2023] FCA 324 per Feutrill J.

[21] Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 at [89].